02/07/2012 04:48 pm ET Updated Apr 08, 2012

Super PAC Legality? We Don't Believe in the Tooth Fairy Either

Based on recent published reports, we believe that both the Super PAC supporting Mitt Romney, Restore our Future, and the Super PAC supporting President Barack Obama, Priorities USA Action, are illegal operations.

Democracy 21 wrote to the Justice Department twice last month expressing our concerns about the serious legal questions that exist regarding the presidential candidate-specific Super PACs. We also issued a report last month about these serious legal questions.

We will be writing to the Justice Department shortly asking the Department to open a criminal investigation into whether Restore our Future and Priorities USA Action are illegal operations.

In order to believe that the Super PACs supporting President Obama and Mitt Romney are "independent" from the presidential campaigns they are supporting, you must believe in the tooth fairy.

Democracy 21 does not believe in the tooth fairy.

The Supreme Court has spoken in the broadest terms about the degree of independence that is necessary for "independent expenditures" to be considered free of the legal constraints that would otherwise apply to in-kind contributions. Such expenditures must be "totally independent," "wholly independent," "truly independent," and made "without any candidate's approval (or wink or nod)...," according to the Court.

The federal campaign finance statute provides that expenditures made "in cooperation, consultation, or in concert with or at the request or suggestion of a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate."

The Super PACs supporting Mitt Romney and President Obama do not approach meeting these legal standards.

In our view, any involvement of a presidential candidate or campaign, or agents of the candidate or campaign, in the establishment or operation of a candidate-specific Super PAC supporting that presidential campaign constitutes coordination that renders all of the Super PAC's subsequent expenditures as having been made in coordination with the presidential campaign.

The idea that the presidential candidate-specific Super PACs are "independent" from the presidential candidates and campaigns they are supporting is a complete fantasy.

It is time to return to reality and put an end to these corrupting Super PACs whose purpose is to circumvent and eviscerate the limits on contributions to candidates enacted to prevent corruption.